Incapacity to ESA 'conversions' - your thoughts? Dec 8, 2012 0:18:43 GMT 1
Post by nickd on Dec 8, 2012 0:18:43 GMT 1
Going through 'migration' from incapacity benefits to ESA?
I would really appreciate your help...
I would be very interested to hear the views of those who have undergone or who are awaiting the 'migration' of their pre-existing Incapacity Benefit, Income Support claimed on the grounds of incapacity & Severe Disablement Allowance claims over to Employment & Support Allowance.
The reason I'm interested is because I am currently in the midst of legally challenging this under what is known as the 'lead case' Tribunal procedural ruling which allows us to raise a 'point of law' which arises in two or more first - tier tribunal cases. It's not an Upper Tribunal procedure ( we have these on the go as well ) but essentially it allows us to ask a senior judge to rule on an area of law or common mistake as to fact and then apply for the ruling to be applied to other cases which we can tie to the 'lead case'.
It's complicated but essentially the issue is this.
(1) In a NEW claim for ESA you are asked to provide medical evidence from your own doctor from the very beginning of your claim because you initially enter the 'assessment phase'. It is a condition of your entitlement that you supply up to date medical certificates until a decision is made over whether you are entitled to a placement in the 'main phase' of ESA in either the Work Related Activity Group or Support Group. Before a decision is made the claimant is usually assessed under the 'Work Capability Assessment' conducted by Atos. As part of the process most claimants have to complete an ESA 50 questionnaire.
(2) In a 'conversion' or migration case it is different.
The steps in the process are as follows:
(a) You will be sent a 'conversion' notice telling you about the migration.
(b) You will be sent the ESA 50
(c) You will normally have to attend a Work Capability Assessment
(d) A formal 'conversion' decision is made which determines whether your pre-existing award of benefit can be converted in to an ESA award and you will then be told whether you go into the Work Related Activity Group, Support Group or you may be told you do not qualify in which case you are told your existing award will be terminated on a given date.
It is my contention that it wrong to treat new claims differently to conversion claims because in a new claim the claimant is required to ask their doctor to provide sick notes before the claimant is assessed by Atos. Since April 2010 all GP's have to consider when writing out a sick note (or MED 3) whether their patient is (1) Unfit for work or could do some work but with (i) altered hours (ii) a phased return (iii) amended duties or (iv) with workplace adaptations. The doctor has therefore already considered the question of 'limited capability for work'. This is important because the assessment phase for new claims is more equal than it is in conversion cases. The claimant is required to make contact with their doctor before they are assessed by Atos.
In a conversion case the claimant is not required to contact their doctor unless they appeal against the conversion 'decision' (not the notice); it is only if they appeal that they are then placed in the ESA 'assessment phase' which I say is too late because the claimant has already been assessed by Atos in the 'conversion' phase. In my contention I am arguing that this is unequal to the situation which exists with a new claim and deprives the claimant of a statutory requirement to make contact with their doctor before the formal conversion is made.
Bear in mind how many conversion claimants may not have seen their doctor under the old rules for some time because under incapacity legislation they will only have had to see their doctor to get 'signed off' at the beginning of the claim, after which they have been periodically assessed under the older rules relating to the 'personal capability assessment'.
This means that in longer term incapacity cases the claimant will not be required to discuss their problems over the preceding years with their doctor before they see Atos. If this happened a doctor may get a proper opportunity to remind the claimant to make sure the Atos healthcare professional is told about all of the problems they have experienced since they were originally signed off.
The reminder may help to ensure the claimant is better 'briefed' by a GP (who will have full access to all the patient's medical records) to tell Atos 'everything'.
What are your experiences?
In particular how long is the conversion process taking from when you get the notice until you get the decision and until your appeal comes up if you have to appeal?
In many cases the DWP say the claimant 'has no evidence' when they see Atos to which I'm arguing that the process does not require them to provide it.
A particular trend in long term incapacity cases is that a claimant may develop mental as well as physical problems because they have become increasingly isolated from those around them and from the medical profession because the DWP specifically never required them to make any contact. The only contact they will have been required to make is with the DWP in periodic checks.
Any thoughts on this anyone?
There are lots of other legal issues connected with being sent an ESA 50 and having to go for an ESA Work Capability Assessment when the claimant is still subject to the incapacity rules right up until the conversion decision but the above points are the ones I'm really interested in.
Remember I'm concerned only with the contact you were required to make with your doctor not any consultations you may have had of your own accord. The legal issue is connected with the 'requirement' clauses in the legislation.
Hope this isn't too difficult to follow for any of you but I've done my best to simplify some very complex arguments into what I hope is something which is easy to understand.